Citation Nr: 9608855
Decision Date: 03/28/96 Archive Date: 10/23/96
BOARD OF VETERANS' APPEALS
DEPARTMENT OF VETERANS AFFAIRS
WASHINGTON, DC 20420
DOCKET NO. 92-21 965 DATE MAR 28 1996
On appeal from the Department of Veterans Affairs (VA) Regional
Office (RO) in St. Louis, Missouri
THE ISSUES
1. Entitlement to service connection for an acquired eye
disorder, claimed as secondary to service-connected diabetes
mellitus.
2. Entitlement to an increase in the 20 percent rating currently
assigned for the service-connected peripheral neuropathy of both
legs.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The veteran had active service from July 1988 to October 1991.
This matter originally came to the Board of Veterans' Appeals
(Board) on appeal from a March 1992 rating decision. The Board
remanded the appeal to the RO for additional development in
September 1994 and February 1995. By rating action in April 1995,
the RO assigned an increased rating of 20 percent for the service-
connected peripheral neuropathy of both legs. Since the assignment
of a higher rating is possible for the service-connected
disability, the Board will address this matter in the decision as
discussed hereinbelow.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has an eye disorder which he believes
is related to his service-connected diabetes mellitus. He also
feels that a higher rating is warranted for the peripheral
neuropathy.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A. 7104
(West 1991 & Supp. 1995), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against the claim
of secondary service connection and the claim for increase.
FINDINGS OF FACT
1. The veteran, without demonstrating good cause, did not report
for a VA ophthalmologic examination scheduled in April 1995, in
conjunction with his claim of service connection.
2. The veteran does not have an acquired eye disorder which is
shown to be causally or etiologically related to his service-
connected diabetes mellitus.
3. The veteran's service-connected peripheral neuropathy is
wholly sensory in nature and is not shown to be productive of more
than mild impairment of either lower extremity.
CONCLUSIONS OF LAW
1. The veteran does not have an acquired eye disorder which is
proximately due to or the result of service-connected disability.
38 U.S.C.A. 1110, 1131, 5107, 7104 (West 1991); 38 C.F.R. 3.102,
3.303(c), 3.3 10(a), 3.655 (1995).
2. The criteria for the assignment of a rating higher than 20
percent for the service-connected peripheral neuropathy of both
legs are not met. 38 U.S.C.A. 1155, 5107, 7104 (West 1991), 38
C.F.R. 3.321, 4.3, 4.7, 4.124a including Diagnostic Code 8720
(1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board finds that the veteran's claims are well-grounded within
the meaning of 5107 and that all facts have been developed, to the
extent possible, in accordance with this law. Murphy, v.
Derwinski, 1 Vet.App. 78 (1990); Proscelle v. Derwinski, 2 Vet.App.
629 (1992).
II
Secondary Service-Connection
Initially, it is noted that the veteran was examined by VA in
November 1991 and January 1992. At the direction of the Board
remands in September 1994 and February 1995, the veteran was
examined by VA in March 1995, and was scheduled for an additional
necessary ophthalmologic examination in April 1995. However, the
veteran failed to report for the latter examination.
In this regard, the regulations provide that, when a claimant fails
to report for an examination scheduled in conjunction with an
original compensation claim, the claim shall be adjudicated based
on the evidence of record. 38 C.F.R. 3.655 (1995).
A VA ophthalmologic examination was conducted in January 1992. At
that time, the veteran complained of occasional blurred vision and
reported that he had never worn glasses. The veteran also denied
any history of an eye injury or glaucoma. On examination, extra
ocular movements were noted to be full, and there was noted to be
no evidence of any organic eye pathology. The diagnosis was that
of hyperopia with no evidence of diabetic retinopathy.
The purpose of the recent Board remand was to schedule the veteran
for VA examination to evaluate his claims of acquired ocular
abnormality as secondary to his service-connected diabetes
mellitus. However, the veteran failed to report for the scheduled
April 1995 VA examination. The current medical evidence of record
shows that the veteran has hyperopia, and the examiner who
evaluated the veteran in January indicated that he had no organic
eye pathology and no evidence of diabetic retinopathy.
Accordingly, given the evidence currently of record, the Board
finds no basis to support the grant of service connection for an
eye disorder as secondary to the service-connected diabetes
mellitus.
II
Increased Rating
A VA neurologic examination was conducted in November 199 1. At
that rime, the veteran complained of tingling and numbness in both
leg and indicated that he was a "student." On examination, there
was diminished sensation to vibratory, light touch and pin prick in
the posterior thigh and calf and extending over the dorsum of both
feet. Position sensation was intact and motor power was normal.
Deep tendon reflexes were 2+, and the Romberg was negative.
Diadochokinesis and stereognosis were normal and the veteran's gait
and station were unremarkable. The diagnosis was that of
peripheral neuropathy in both lower extremities with paresthesia
and sensory deficits secondary to diabetes mellitus.
When examined by VA in March 1995, the veteran reported "numb
sensations" escalating through the day involving only the lower
extremities. The veteran described his symptoms as starting off
slightly, barely noticeable, in the morning and increasing to a
"maximum" in about seven hours. The veteran reported that he was
attending school regularly and denied any paralysis, incoordination
or bowel or bladder symptoms. On examination, there was diminished
sensation to vibratory, light touch and pinprick over the posterior
area of the thighs and calves and extending over the dorsum of both
feet. Posterior columns, cerebellar system, cranial nerves, deep
tendon reflexes and motor power in all flexors and extensors were
within nominal limits. The veteran's gait and station were
unremarkable, and the Romberg was negative. The diagnosis was that
of peripheral neuropathy in the lower extremities, secondary to
diabetes mellitus with paresthesia and sensory deficits. The
examiner noted that the findings were unchanged since the last exam.
In a rating decision by the RO in April 1995, the veteran was
granted an increased rating to 20 percent for his service-connected
peripheral neuropathy of the lower extremities (10 percent for each
leg for a combined (bilateral) rating of 20 percent), effective
from October 9, 1991.
In the instant case, the evidentiary record shows that the veteran
was evaluated by VA on two separate occasions during the course of
his appeal and the findings were not shown to be materially
different on either examination. The findings included some
diminished sensation in posterior area of his thighs and calves,
extending over the dorsum of both feet. However, the veteran's
gait was unremarkable, and it was reported that he was able to
attend classes regularly without any significant functional
impairment. The veteran denied having any paralysis or
incoordination, and there was no evidence of any motor deficit in
either lower extremity. Absent findings of functional loss or
related motor impairment or other evidence which suggests the
presence of more than mild disablement of either lower extremity,
the Board finds a rating higher than the currently assigned 20
percent is not warranted for the bilateral disease process.
In addition, the Board finds that the veteran has not submitted any
evidence of an unusual or exceptional disability picture regarding
his service-connected peripheral neuropathy of both legs which
would require consideration of the assignment of an increased
rating on an extraschedular basis under the provisions of 38
U.S.C.A. 3.321(b)(1).
ORDER
Service connection for an eye disorder, secondary to the service-
connected diabetes mellitus is denied.
An increased rating for the service-connected peripheral neuropathy
of both legs is denied.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, 6, 108 Stat. 740, 741 (1994),
permits a proceeding instituted before the Board to be assigned to
an individual member of the Board for a determination. This
proceeding has been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. 7266 (West 1991 &
Supp. 1995), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, 402, 102 Stat. 4105, 4122 (1988).
The date which appears on the face of this decision constitutes the
date of mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal by the
Board of Veterans' Appeals.